EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
Dated as of December 1, 1999
by and among
EQUINIX, INC.
and
XXXXXXX XXXXX XXXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
as Initial Purchasers
$200,000,000 Aggregate Principal Amount of 13% Senior Notes due 2007
TABLE OF CONTENTS
Page
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1. Definitions........................................................... 1
2. Exchange Offer........................................................ 4
3. Shelf Registration Statement.......................................... 6
4. Liquidated Damages.................................................... 7
5. Registration Procedures............................................... 7
6. Registration Expenses................................................. 14
7. Indemnification....................................................... 15
8. Rules 144 and 144A.................................................... 18
9. Underwritten Registrations............................................ 18
10. Miscellaneous......................................................... 18
(a) Remedies....................................................... 18
(b) No Inconsistent Agreements..................................... 19
(c) Adjustments Affecting Transfer Restricted Notes................ 19
(d) Amendments and Waivers......................................... 19
(e) Notices........................................................ 19
(f) Successors and Assigns......................................... 20
(g) Counterparts................................................... 20
(h) Headings....................................................... 20
(i) Governing Law.................................................. 20
(j) Severability................................................... 21
(k) Notes Held by the Company or Its Affiliates.................... 21
(l) Third Party Beneficiaries...................................... 21
(m) Entire Agreement............................................... 21
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
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entered into as of December 1, 1999, by and among Equinix, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Xxxxxxx & Co.
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Incorporated and Xxxxxxx, Sachs & Co. (the "Initial Purchasers").
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This Agreement is entered into in connection with the Purchase
Agreement, dated November 24, 1999, by and among the Company and the Initial
Purchasers (the "Purchase Agreement") relating to the sale by the Company to the
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Initial Purchasers of Units (the "Units") consisting of $200,000,000 aggregate
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principal amount of the Company's 13% Senior Notes due 2007 (the "Notes") and
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Warrants to purchase 2,251,000 shares of the Company's Common Stock. In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement for the benefit of the holders of Transfer Restricted Notes (as
defined), including, without limitation, the Initial Purchasers. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Units under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Advice: see the last paragraph of Section 5.
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Agreement: see the first introductory paragraph to this Agreement.
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Applicable Period: see Section 2(b).
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Business Day: means a day that is not a Saturday, a Sunday or a day
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on which banking institutions are required to be closed in New York, New York.
Company: see the first introductory paragraph to this Agreement.
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Effectiveness Period: see Section 3(a).
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Event Date: see Section 4(b).
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Exchange Act: means the Securities Exchange Act of 1934, as amended,
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and successor statue or statues thereto.
Exchange Notes: means senior debt securities of the Company with
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substantially identical terms to the Notes (except that such debt securities
will not contain terms with respect to additional interest or transfer
restrictions under the Securities Act) to be exchanged for the Notes in the
Exchange Offer.
Exchange Offer: means the offer to exchange the Exchange Notes for
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the Notes.
Exchange Offer Registration Statement: see Section 2(a).
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Holder: means any registered holder of Transfer Restricted Notes.
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Indemnified Person: see Section 7(c).
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Indemnifying Person: see Section 7(c).
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Indenture: means the Indenture, dated as of December 1, 1999, by and
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between the Company and State Street Bank and Trust Company of California, N.A.,
as trustee, pursuant to which the Notes, Exchange Notes and any Private Exchange
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: see the first introductory paragraph to this
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Agreement.
Inspectors: see Section 5(o).
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Issue Date: means December 1, 1999, the original issue date of the
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Notes.
Interest Payment Date: has the meaning specified in the Indenture.
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Liquidated Damages: see Section 4(a).
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NASD: means the National Association of Securities Dealers, Inc.
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Notes: see the second introductory paragraph to this Agreement.
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Participant: see Section 7(a).
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Participating Broker-Dealer: see Section 2(b).
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Person: means an individual, trustee, corporation, partnership,
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limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Private Exchange: see Section 2(b).
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Private Exchange Notes: see Section 2(b).
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Prospectus: means the prospectus included in any Registration
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Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Transfer Restricted Notes covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including post-
effective
2
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: see the second introductory paragraph to this
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Agreement.
Records: see Section 5(o).
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Registration Default: see Section 4(a).
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Registration Statement: means any registration statement of the
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Company, including, but not limited to, the Exchange Offer Registration
Statement or Shelf Registration Statement, that covers any of the Transfer
Restricted Notes pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: means Rule 144 under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith by subsequent holders that are not
affiliates of an issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
Rule 144A: means Rule 144A under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: means Rule 415 under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: means the United States Securities and Exchange Commission.
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Securities Act: means the United States Securities Act of 1933, as
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amended.
Shelf Filing Event: see Section 3(a).
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Shelf Registration Statement: see Section 3(a).
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TIA: means the Trust Indenture Act of 1939, as amended.
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Transfer Restricted Notes: means each outstanding Note until (i) the
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date on which such Note has been exchanged by a Person other than a broker-
dealer for an Exchange Note in the Exchange Offer, (ii) following the exchange
by a broker-dealer in the Exchange Offer of a Note for an Exchange Note, the
date on which such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Note has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement, (iv) the date on which
such Note is distributed to the public
3
pursuant to Rule 144 under the Securities Act or (v) the date on which such Note
is eligible for resale pursuant to Rule 144 without volume restriction.
Trustee: means the trustee under the Indenture and the trustee under
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any separate indenture governing the Exchange Notes.
Underwritten registration or underwritten offering: means a
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registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
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(a) The Company agrees, for the benefit of the Holders, that it will,
at its cost, (i) within 90 calendar days after the Issue Date, use its
reasonable best efforts to file a Registration Statement (the "Exchange Offer
--------------
Registration Statement") with the SEC with respect to a registered offer to
----------------------
exchange the Exchange Notes for the Notes, (ii) within 210 calendar days after
the Issue Date, use its reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act and
(iii) within 30 calendar days of the Exchange Offer Registration Statement being
declared effective, use its reasonable best efforts to offer the Exchange Notes
in exchange for surrender of the Notes unless the Exchange Offer would not be
permitted by applicable law or SEC policy. The Company will keep the Exchange
Offer open for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders. For each Note surrendered to the Company pursuant to the Exchange
Offer, the Holder of such Note will receive an Exchange Note having a principal
amount equal to that of the surrendered Note. Interest on the Exchange Notes
will accrue from the last Interest Payment Date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
such Notes, from the Issue Date.
(b) (b) The Company shall include within the Prospectus contained in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which shall contain a summary statement of the positions taken or
policies made by the Staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether
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such positions or policies have been publicly disseminated by the Staff of the
SEC or such positions or policies represent the prevailing views of the Staff of
the SEC. Such "Plan of Distribution" section shall also allow, to the extent
permitted by applicable policies and regulations of the SEC, the use of the
Prospectus by all Participating Broker-Dealers and other Persons, if any, with
similar prospectus delivery requirements for a period of 180 calendar days
following the consummation of the Exchange Offer, and include a statement
describing the manner in which Participating Broker-Dealers may resell the
Exchange Notes.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein for the lesser of (x) 180 calendar days following
consummation of the Exchange Offer or (y) such period of time as may be
necessary in order to permit such Prospectus to be lawfully delivered by
Participating Broker-Dealers subject to the prospectus delivery requirements of
the
4
Securities Act and other Persons, if any, with similar prospectus delivery
requirements in connection with offers and sales of the Exchange Notes; provided
that such period shall not exceed 180 calendar days following the consummation
of the Exchange Offer (the "Applicable Period").
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If, upon consummation of the Exchange Offer, any Initial Purchaser
holds any Notes acquired by it and having the status of an unsold allotment in
the initial distribution and determines upon advice of its outside counsel that
it is not eligible to participate in the Exchange Offer, the Company upon the
request of any such Initial Purchaser and receipt of an opinion of outside
counsel for such Initial Purchaser, reasonably satisfactory in form and
substance to the Company and its counsel, to the effect that the Private
Exchange (as defined below) does not require compliance with the registration
requirements of the Securities Act, shall, as soon as practicable following
delivery of such request and opinion, issue and deliver to such Initial
Purchaser, in exchange (the "Private Exchange") for the Notes held by such
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Initial Purchaser, a like principal amount of debt securities of the Company
that are identical in all material respects to the Exchange Notes except for the
existence of restrictions on transfer thereof under the Securities Act and
securities laws of the several states of the United States and that are issued
pursuant to the same indenture as the Exchange Notes (the "Private Exchange
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Notes"). The Company shall cause the CUSIP Bureau to issue the same CUSIP
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number for the Private Exchange Notes as for the Exchange Notes. Interest on
the Private Exchange Notes will accrue from the last Interest Payment Date on
which interest was paid on the Notes surrendered in exchange therefor or, if no
interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York, which may be the
Trustee or an affiliate thereof; and
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Notes of such Holder so accepted
for exchange.
5
The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture, which in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture and that the
Exchange Notes, the Private Exchange Notes and the Notes, if any, will vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes, if any, will have the right to
vote or consent as a separate class on any matter.
3. Shelf Registration Statement
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(a) In the event that (i) changes in law or in currently applicable
interpretations of the Staff of the SEC do not permit the Company to effect such
an Exchange Offer, (ii) the Exchange Offer Registration Statement is not
declared effective within 210 calendar days of the Issue Date, (iii) any Holder
notifies the Company on or by the 20th Business Day following consummation of
the Exchange Offer that (a) it is prohibited by law or SEC policy from
participating in the Exchange Offer, (b) it may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales or (c) it is a
broker-dealer and owns Notes acquired directly from the Company or an affiliate
of the Company (each such event referred to in clauses (i), (ii) and (iii), a
"Shelf Filing Event"), the Company will, at its cost, (a) use its reasonable
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best efforts to file with the SEC a shelf registration statement (the "Shelf
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Registration Statement") covering resales of the Notes, on or prior to the later
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of (x) 30 days after the Shelf Filing Event or (y) 120 days after the Issue
Date, (b) use its reasonable best efforts to cause the Shelf Registration
Statement to be declared effective by the SEC on or prior to the 90th day after
such obligation arises and (c) use its reasonable best efforts to keep
continuously effective the Shelf Registration Statement until two years after
the Issue Date or such shorter period that will terminate when all the Notes
covered by such Shelf Registration Statement have been sold pursuant thereto
(the "Effectiveness Period"). The Company will, in the event the Shelf
--------------------
Registration Statement is filed, provide to each Holder copies of the Prospectus
which is a part of the Shelf Registration Statement, notify each such Holder
when the Shelf Registration Statement for the Notes has become effective and
take such other actions as are reasonably required to permit unrestricted
resales of the Notes. Holders will be required to deliver information to be used
in connection with the Shelf Registration Statement in order to have their
Transfer Restricted Notes included in the Shelf Registration Statement. The
Shelf Registration Statement shall be on Form S-1 or another appropriate form
permitting registration of such Transfer Restricted Notes for resale by Holders
in the manner or manners designated by them and set forth in such Shelf
Registration Statement (including, without limitation, one or more underwritten
offerings). The Company shall not permit and shall not be required to permit any
securities other than the Transfer Restricted Notes to be included in any Shelf
Registration Statement.
(b) Supplements and Amendments. The Company shall promptly supplement
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and amend any Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used for such Shelf
Registration Statement, if required by the Securities Act or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Notes covered by such Shelf Registration Statement or by any underwriter of such
6
Notes, in each case, with the Company's consent, which consent shall not be
unreasonably withheld or delayed.
4. Liquidated Damages
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(a) The Company and the Initial Purchasers agree that the Holders of
Transfer Restricted Notes will suffer damages if the Company fails to fulfill
its obligations under Section 2 or Section 3 hereof, as applicable, and that it
would not be feasible to ascertain the extent of such damages. Accordingly, in
the event that (i) neither the Exchange Offer Registration Statement nor Shelf
Registration Statement is filed with the SEC on or prior to the date specified
herein for such filing, (ii) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective on or prior to the date
specified for such effectiveness, (iii) the Exchange Offer is not consummated
within 30 days of the Exchange Offer Registration Statement being declared
effective or (iv) the SEC shall have issued a stop order suspending the
effectiveness of the Exchange Offer Registration Statement or any Shelf
Registration Statement with respect to the Notes at a time when such Exchange
Offer Registration Statement or Shelf Registration Statement, as the case may
be, is required to be kept effective by the Company (each such event described
in clauses (i) through (iv) above, a "Registration Default"), then the Company
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agrees to pay, or cause to be paid, as liquidated damages and not as a penalty
to each Holder of Transfer Restricted Notes affected by such Registration
Default, additional interest ("Liquidated Damages"). During the time that
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Liquidated Damages are accruing continuously, the rate of such Liquidated
Damages shall be .50% per annum during the first 90-day period and shall
increase by .50% per annum for each subsequent 90-day period, but in no event
shall such rate exceed 1.50% per annum in the aggregate regardless of the number
of Registration Defaults. If, after the cure of all Registration Defaults then
in effect, there is a subsequent Registration Default, the rate of Liquidated
Damages for such subsequent Registration Default shall initially be .50%
regardless of the Liquidated Damages rate in effect with respect to any prior
Registration Default at the time of the cure of such Registration Default.
(b) The Company shall notify the Trustee under the Indenture
immediately upon the happening of an event in respect of which Liquidated
Damages are required to be paid (an "Event Date"). The Company shall pay the
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Liquidated Damages due on the Transfer Restricted Notes by depositing with the
Trustee (which shall not be the Company for these purposes), in trust, for the
benefit of the Holders thereof, at least one day prior to the next Interest
Payment Date, sums sufficient to pay the Liquidated Damages then due. The
Liquidated Damages due shall be payable in cash on each Interest Payment Date.
Each obligation to pay Liquidated Damages shall be deemed to accrue from and
including the applicable Event Date (but excluding the date on which the
applicable Registration Statement is filed or declared effective) to the date
the Exchange Offer is consummated, or the applicable Registration Statement is
again declared effective or made usable.
5. Registration Procedures
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In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of such securities covered thereby in accordance with the intended
method or methods of disposition thereof, and
7
pursuant thereto and in connection with any Registration Statement filed by the
Company hereunder, the Company shall:
(a) Use its reasonable best efforts to prepare and file with or
confidentially submit to the SEC a Registration Statement or Registration
Statements as prescribed by Section 2 or 3, and use its reasonable best efforts
to cause each such Registration Statement to become effective and remain
effective as provided herein; provided that, if (1) a Shelf Registration
Statement is filed pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2 is required to
be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period and has advised the
Company that it is a Participating Broker-Dealer, before filing such
Registration Statement or any related Prospectus or any amendments or
supplements thereto, the Company shall, if requested, furnish to and afford the
Holders of the Transfer Restricted Notes to be registered pursuant to such Shelf
Registration Statement or each such Participating Broker-Dealer, as the case may
be, covered by such Registration Statement and their counsel, a reasonable
opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed. The Company shall not file any such Registration
Statement or Prospectus or any amendments or supplements thereto if the Holders
of a majority in aggregate principal amount of the Transfer Restricted Notes
covered by such Registration Statement, including any such Participating Broker-
Dealer, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as applicable, subject to the right of the Company to allow such
effectiveness to lapse for valid business reasons for a period or periods not in
excess of 45 days within any 180 consecutive day period; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement as so amended or such Prospectus as so supplemented and with respect
to the subsequent resale of any securities being sold by a Participating Broker-
Dealer covered by any such Prospectus. The Company shall be deemed not to have
used its reasonable best efforts to keep a Registration Statement effective
during the Effectiveness Period or Applicable Period, as the case may be, if it
voluntarily takes any action that would result in selling Holders of the
Transfer Restricted Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Transfer Restricted
Notes or such Exchange Notes during that period unless such action is required
by applicable law, rule or regulation or unless the Company complies with this
Agreement, including, without limitation, the provisions of paragraph 5(k)
hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period from whom the Company has received
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written notice that it will be a Participating Broker-Dealer, notify the selling
Holders of Transfer Restricted Notes, and each such Participating Broker-Dealer
and its counsel promptly (but in any event within two Business Days), and if
requested by such Holders or Participating Broker Dealers, confirm such notice
in writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective (including in such
notice a written statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents incorporated
or deemed to be incorporated by reference and exhibits), (ii) of the issuance by
the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of the Transfer Restricted Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (iv) of the happening of any event, the existence of any condition
or any information becoming known that requires the making of any changes in, or
amendments or supplements to, such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (v) of the
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Transfer
Restricted Notes or the Exchange Notes to be sold by any Participating Broker-
Dealer, for sale in any jurisdiction, and, if any such order is issued, to use
its reasonable best efforts to obtain the withdrawal of any such order at the
earliest possible date.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Transfer Restricted Notes being
sold in connection with an underwritten offering, (i) as promptly as practicable
incorporate in a prospectus supplement or post-effective amendment such
information or revisions to information therein relating to such underwriters or
selling Holders as the managing underwriters, if any, or such Holders or their
counsel reasonably request to be included or made therein and (ii) make all
required filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment.
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(f) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of Transfer Restricted Notes
and to each such Participating Broker-Dealer who so requests and to counsel and
each managing underwriter, if any, without charge, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, and, if
requested, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer, deliver to each selling Holder of Transfer
Restricted Notes or each such Participating Broker-Dealer, as the case may be,
their respective counsel, and the underwriters, if any, without charge, as many
copies of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Transfer Restricted Notes and each Participating Broker-
Dealer, and the underwriters or agents, if any, and dealers (if any), in
connection with the offering and sale of the Transfer Restricted Notes covered
by such Prospectus and any amendment or supplement thereto for a period equal to
the Effectiveness Period or the Applicable Period, as applicable.
(h) Prior to any public offering of Transfer Restricted Notes, use its
reasonable best efforts to register or qualify, and cooperate with the selling
Holders of Transfer Restricted Notes and prior to any delivery of a Prospectus
contained in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use
its reasonable best efforts to cooperate with each such Participating Broker-
Dealer, the underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Transfer Restricted Notes or Exchange Notes, as the case
may be, for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any such selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters, if any, reasonably
request in writing; provided that where Transfer Restricted Notes are offered
pursuant to an underwritten offering, counsel to the underwriters shall, at the
cost and expense of the Company, perform the Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); cooperate with such selling Holders and any such Participating Broker-
Dealer to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period or the Applicable Period with respect
to such Registration Statement and to do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes by such Participating Broker-Dealers or the
Transfer Restricted Notes covered by the applicable Registration Statement;
provided that the Company shall not be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take any
action that would
10
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3,
cooperate with the selling Holders of Transfer Restricted Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such Transfer
Restricted Notes to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or Holders, by the second day
prior to the delivery of the Transfer Restricted Notes or Exchange Notes to be
sold may reasonably request in writing.
(j) Use its reasonable best efforts to cause the Transfer Restricted
Notes covered by the Registration Statement to be registered with or approved by
such governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Transfer Restricted Notes, in which case the Company will
cooperate in all respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(c)(iv) or 5(c)(v) hereof, as promptly as practicable prepare and (subject to
Section 5(a) hereof) file with the SEC, at the Company's sole expense, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Transfer Restricted Notes
being sold thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(l) Use its reasonable best efforts to cause the Transfer Restricted
Notes covered by a Registration Statement to be rated with no more than three
appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Transfer Restricted Notes covered by such
Registration Statement or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Notes, (i) provide the Trustee with printed
certificates for the Transfer Restricted Notes in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Exchange Notes and the Private Exchange Notes, if applicable.
11
(n) In connection with an underwritten offering of Transfer Restricted
Notes pursuant to a Shelf Registration Statement, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities similar
to the Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Transfer Restricted Notes pursuant to
the Shelf Registration Statement and, in such connection, (i) make such
representations and warranties to the underwriters, with respect to the business
of the Company and its subsidiaries and the Registration Statement, Prospectus
and documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and confirm the
same in writing if and when requested; (ii) obtain the opinion or opinions of
counsel to the Company and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings of debt securities similar to the Notes and such other
matters as may be reasonably requested by underwriters; (iii) to the extent
permitted by Statement of Auditing Standards No. 72, obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Notes and such other
matters as reasonably requested by the managing underwriter or underwriters; and
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Transfer Restricted Notes
covered by such Registration Statement, the managing underwriter or underwriters
or agents and the Company) with respect to all parties to be indemnified
pursuant to said Section. The above shall be done at and dated as of the date
of each closing under such underwriting agreement, or to such lesser extent
required thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any selling Holder of such
Transfer Restricted Notes being sold, and each Participating Broker-Dealer, any
underwriter participating in any such disposition of Transfer Restricted Notes,
if any, not more than one attorney, accountant or other agent retained by all
selling Holders, and any attorney, accountant or other agent retained by each
Participating Broker-Dealer, as the case may be (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
----------
hours, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries (collectively, the "Records") as
-------
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement. Records
which the Company determines, in good faith, to be
12
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors without the Company's prior consent
unless (i) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (ii) the information in such
Records has been made generally available to the public other than as a result
of a disclosure or failure to safeguard by such Inspector or (iii) disclosure of
such information is, in the opinion of counsel for any Inspector, necessary in
connection with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of, based
upon, related to, or involving this Agreement, or any transactions contemplated
hereby or arising hereunder. Each selling Holder of such Transfer Restricted
Notes and each Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each Inspector, each selling Holder of such
Transfer Restricted Notes and each Participating Broker-Dealer will be required
to further agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction pursuant to clauses (i) or (iii) of
the previous sentence or otherwise, give notice to the Company and allow the
Company to undertake appropriate action to obtain a protective order or
otherwise prevent disclosure of the Records deemed confidential at its expense.
(p) Provide an indenture trustee for the Transfer Restricted Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2, as the case may be, to be qualified under
the TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Transfer Restricted Notes; and in
connection therewith, cooperate with the trustee under any such indenture and
the Holders of the Transfer Restricted Notes, to effect such changes to such
indenture as may be required for such indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its reasonable best efforts to
cause such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(q) Upon consummation of the Exchange Offer or a Private Exchange,
obtain one or more opinions of counsel to the Company, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Notes participating in the Exchange Offer or the Private Exchange, as
the case may be, that the Exchange Notes or the Private Exchange Notes, as the
case may be, and the related indenture constitute legally valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Notes by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall xxxx, or cause to be
marked, on such Notes that such Transfer Restricted Notes are being cancelled in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Notes be marked as paid or otherwise satisfied solely
as a result of their being exchanged for Exchange Notes or Private Exchange
Notes.
13
(s) Cooperate with each seller of Transfer Restricted Notes covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Transfer Restricted Notes and their respective counsel in
connection with any filings required to be made with the NASD.
Each Holder of Notes who wishes to exchange such Notes for Exchange
Notes in the Exchange Offer will be required to represent, among other things,
that (i) any Exchange Notes to be received by it will be acquired in the
ordinary course of its business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes
and (iii) it is not an "affiliate," as defined in Rule 405 of the Securities
Act, of the Company, or if it is an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
If the Holder is not a Participating Broker-Dealer, it will be
required to represent that it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Notes. If the Holder is a Participating
Broker-Dealer that will receive Exchange Notes for its own account in exchange
for Notes that were acquired as a result of market-making activities or other
trading activities, it will be required to acknowledge that it will deliver a
Prospectus in connection with any resale of such Exchange Notes.
The Company may require each seller of Transfer Restricted Notes as to
which any Registration is being effected to make certain representations and to
furnish to the Company such information regarding such seller and the
distribution of such Transfer Restricted Notes as the Company may, from time to
time, reasonably request. The Company may exclude from such Registration the
Transfer Restricted Notes of any seller who fails to furnish such information
within a reasonable time after receiving such request. Each Holder of Transfer
Restricted Notes as to which any Shelf Registration Statement is effected is
hereby deemed to agree to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.
Each Holder of Transfer Restricted Notes and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v)
it will forthwith discontinue disposition of such Transfer Restricted Notes
covered by such Registration Statement or Prospectus or Exchange Notes to be
sold by such Holder or Participating Broker-Dealer, as the case may be, and, in
each case, dissemination of such Prospectus until such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing (the "Advice")
------
by the Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto.
6. Registration Expenses
---------------------
All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company whether or not
the Exchange Offer
14
or a Shelf Registration Statement is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of one counsel chosen by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Notes in connection with Blue Sky qualifications of the Transfer Restricted
Notes or Exchange Notes and determination of the eligibility of the Transfer
Restricted Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Transfer Restricted Notes are located, in
the case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in
the case of Transfer Restricted Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Transfer Restricted Notes or Exchange Notes in a form eligible for deposit with
The Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Transfer
Restricted Notes included in any Registration Statement or by any Participating
Broker-Dealer, as the case may be, (iii) messenger, telephone and delivery
expenses incurred in connection with the Exchange Offer Registration Statement
and any Shelf Registration Statement, (iv) fees and disbursements of counsel for
the Company and fees and disbursements of one special counsel for the Initial
Purchasers and the sellers of Transfer Restricted Notes, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) rating agency fees, (vii) Securities Act liability insurance, if the
Company desires such insurance, (viii) fees and expenses of all other Persons
retained by the Company, (ix) the expense of any annual or special audit, (x)
the fees and expenses incurred in connection with the listing of the securities
to be registered on any securities exchange, (xi) the fees and disbursements of
underwriters, if any, but only to the extent customarily paid by issuers or
sellers of securities and excluding any underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of the Transfer Restricted
Notes and fees and disbursements of counsel, and (xii) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, indentures and any other
documents necessary in order to comply with this Agreement.
7. Indemnification
---------------
(a) The Company agrees to indemnify and hold harmless each Holder of
Transfer Restricted Notes to be included in any Registration Statement and each
Participating Broker-Dealer, the officers and directors of each such Person, and
each Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
-----------
liabilities (including, without limitation, the reasonable legal fees and other
reasonable expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or caused by,
arising out of or based upon any omission or alleged omission to state therein a
15
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Company in writing by or on behalf of such
Participant expressly for use therein; provided, however, that the Company shall
not be liable if such untrue statement or omission or alleged untrue statement
or omission was contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto and the Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and any such loss, liability, claim, damage or expense suffered or
incurred by the Participants resulted from any action, claim or suit by any
Person who purchased Transfer Restricted Notes or Exchange Notes which are the
subject thereof from such Participant and it is established in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Transfer Restricted Notes or Exchange Notes
sold to such Person unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 5(g) of this Agreement.
(b) Each Participant will be required to agree, severally and not
jointly, to indemnify and hold harmless the Company, its directors and officers
and each Person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Participant, but only with
reference to information relating to such Participant furnished to the Company
in writing by or on behalf of such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. The liability of any Participant under this
paragraph shall in no event exceed the proceeds received by such Participant
from sales of Transfer Restricted Notes or Exchange Notes giving rise to such
obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
------------------
notify the Person against whom such indemnity may be sought (the "Indemnifying
------------
Person") in writing, and the Indemnifying Person, upon request of the
------
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same
16
counsel would be inappropriate due to actual or potential conflicting interests
between them. It is understood that, unless there is a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of Transfer Restricted
Notes sold by all such Participants and any such separate firm for the Company,
its directors, officers and control Persons of the Company shall be designated
in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with such consent or if
there is a final non-appealable judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement (A) includes
an unconditional release of such Indemnified Person, in form and substance
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of an
Indemnified Person.
(d) If the indemnification provided for in the preceding paragraphs of
this Section 7 is unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Person or Persons on the one hand and the Indemnified
Person or Persons on the other in connection with the statements or omissions
(or alleged statements or omissions) that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Indemnifying Person on
the one hand or by the Indemnified Person, as the case may be, on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission and any other equitable
considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by
17
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall a Participant be required to contribute any amount in excess of the amount
by which proceeds received by such Participant from sales of Transfer Restricted
Notes or Exchange Notes, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
------------------
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
it is not required to file such reports, it will, upon the request of any Holder
of Transfer Restricted Notes, make available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act.
9. Underwritten Registrations
--------------------------
If any of the Transfer Restricted Notes covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Company. The Holders shall be responsible
for all underwriting commissions and discounts.
No Holder of Transfer Restricted Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Company of any of its
--------
obligations under this Agreement, each Holder of Transfer Restricted Notes and
each Participating Broker-Dealer holding Exchange Notes, in addition to being
entitled to exercise all rights provided herein, in the Indenture or, in the
case of an Initial Purchaser, in the Purchase Agreement, or granted by law,
including recovery of damages (which damages with respect to a breach by the
Company of its obligations under Sections 2 and 3 hereof shall be the payment of
Liquidated Damages pursuant to Section 4 hereof), will be entitled to specific
performance of its rights under this Agreement. The Company agrees that, except
for such Liquidated Damages, monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the
18
event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered, as of
--------------------------
the date hereof, and shall not enter, after the date of this Agreement, into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Transfer Restricted Notes in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not entered and
will not enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back rights with respect to a Registration
Statement.
(c) Adjustments Affecting Transfer Restricted Notes. The Company
-----------------------------------------------
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Notes as a class that would adversely affect the ability of the
Holders of Transfer Restricted Notes to include such Transfer Restricted Notes
in a registration undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (A) the Holders of not less than a majority in aggregate principal
amount of the then outstanding Transfer Restricted Notes and (B) in
circumstances that would adversely affect Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes then held by all Participating Broker-
Dealers; provided, however, that Section 7 and this Section 10(d) may not be
amended, modified or supplemented without the prior written consent of each
Holder and each Participating Broker-Dealer. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Transfer Restricted Notes
whose securities are being tendered pursuant to the Exchange Offer or sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Transfer
Restricted Notes may be given by Holders of at least a majority in aggregate
principal amount of the Transfer Restricted Notes being tendered or being sold
by such Holders pursuant to such Registration Statement.
(e) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Notes or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture:
(ii) if to the Company, at the address as follows:
19
Equinix, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(iii) if to the Initial Purchasers, as provided in the Purchase
Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; one Business Day
after being timely delivered to a next-day air courier guaranteeing overnight
delivery; and when delivery is confirmed by the sender's telecopier machine, if
telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties hereto
and the Holders; provided, however, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign holds Transfer Restricted Notes.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
20
(j) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(k) Notes Held by the Company or Its Affiliates. Whenever the consent
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or approval of Holders of a specified percentage of Transfer Restricted Notes is
required hereunder, Transfer Restricted Notes held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third Party Beneficiaries. Holders of Transfer Restricted Notes
-------------------------
and Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EQUINIX, INC.
By: /s/ Xxx X. Xxxxxxx
---------------------------
Name: Xxx X. Xxxxxxx
Title: Secretary
XXXXXXX XXXXX XXXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ W. Xxxx Xxxxxx
---------------------------
Name: W. Xxxx Xxxxxx
Title: Vice President
